No respect from Stevens [Updated}

Citizens United v. FEC in plain English:
[Via SCOTUSblog]

By now, you have likely heard the news: The Supreme Court ruled yesterday that the government may not keep corporations (and probably, as Lyle reasons in his post yesterday, labor unions) from spending money to support or denounce individual candidates in elections. While the business entities may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast. Why? Because the First Amendment guarantees the right to free speech, and political spending is one form of that protected speech.

The four dissenting Justices were vocal and vociferous: They voiced the concern that allowing unfettered spending by rich corporations will allow those corporations to influence the outcome of elections in sweeping ways. They also explained that corporations are not human beings and should not have the same free speech rights that humans do.

As Lyle explained in his post yesterday, certain campaign finance rules remain valid after the Court’s decision. Corporations spending more than $10,000 a year on such ads have to disclose the names of donors who supported them. And corporations must reveal who sponsored the ad. Only Justice Thomas did not agree with these restrictions.

The case involved the now-notorious film produced by Citizens United that sought to discredit Hillary Clinton’s presidential candidacy. In ruling that Citizens United could not broadcast the film, the lower court invoked a federal law (known to most of us as McCain-Feingold) which prohibited corporations from spending money to broadcast “electioneering communications” within a certain number of days before an election. In other words, the law heavily restricted corporations’ political speech in the form of spending, as well as the timing and forum of broadcasts. Labor unions had been similarly restrained under federal law for over sixth years.

The timing of the decision is exquisite. With the mid-term elections coming up later this year, the decision is sure to prompt many corporations to make room in their budgets for political spending.

Much about today’s decision was not unusual: The Court was split five-to-four, along typical ideological lines (Thomas, Roberts, Alito, Kennedy, and Scalia in the majority, Sotomayor, Breyer, Ginsburg, and Stevens dissenting). The case made sweeping changes in federal election law, overturning previous Supreme Court cases and clarifying language in others.

But there were quite a few things about the Citizens United announcement and opinion that were unusual.


One of the unusual things in this decision was this:

Finally, unusual detail number four. Justice Stevens read his dissent (or some of it – if he had read all ninety pages, we’d still be in Court) from the bench. While the author of the majority opinion will often select a key portion of that opinion to read from the bench, it is quite unusual for a dissenter to do so. When it happens, it’s a sign that the dissenter feels very strongly that the Court got it wrong. Because the Court has a stake in operating as a uniform body – which is what keeps the rule of law alive, after all – dissenters generally “respectfully” dissent, both in writing (check out the last line of almost any dissenting opinion) and in conduct.

You can search the dissent for the words “respectfully” and fail to find it. Thomas “respectfully” dissents from the section he was against. But not Stevens.

In fact, he “empahtically” dissents. As I mentioned below, the final paragraph of the dissent is pretty straightforward. It tells me that there are some interesting views under the surface:

At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

He actually ended by saying he affirmed the lower court’s ruling, not even mentioning the Supreme Court. I’d love to be a fly on the wall. Especially since it appears that Stevens might not be back next year.

[UPDATE: As an example, in Bush V. Gore,
Stevens did “respectfully” dissent. But not here.]

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